ute of frauds will apply, as in that case the creditors may have been injured, delayed, or defrauded; but this would not be the case where the grantor alone was guilty of fraud. "It will not, in such a case, be void, even as against the persons who are in fact very materially hindered or delayed, and were meant to be so. The explanation is that, although in these cases the intent to hinder and delay the creditor is manifest, it is just as certain that there is no intent to cheat or defraud them; and the reasonable construction of the statute is that it is only such a hindrance or delay as is intended to operate, or, if permitted, could operate, as a fraud upon the creditors, that was meant to be prohibited." Bump, Fraud. Conv. (4th Ed.) § 332; Ferrall v. Farnen, 67 Md. 76, 8 Atl. 819. The fact of an intent to delay or defraud creditors is not to be implied from the execution of the deed; the fraud must be shown. Myers v. Kinzie, 26 Ill. 36. The appellants contend that the grantor fraudulently procured a continuance of a case pending against him, in order that this deed could be executed before judgment. It is held that the execution of a deed of assignment pending a suit against the grantor by a creditor not secured by it, a short time before judgment could be taken against him, will not render the deed void. Sipe v. Earman, 26 Grat. 563; Bump. Fraud. Conv. (4th Ed.) § 332. It is also held that there is no objection to the validity of the assignment; that it was made in anticipation, on the part of the assignor and assignee, of the immediate issuing of an attachment against the property of the assignor. Hollister v. Loud, 2 Mich. 309; Bump, Fraud. Conv. (4th Ed.) §§ 331, 332. The appellant also contends that the consent of the creditors to the assignment was a prerequisite to its validity. This contention cannot be maintained. It is well established that the assent of creditors to an assignment made for their benefit is not necessary to the validity of the assignment. Burrill, Assignm. (6th Ed.) § 257; Brooks v. Marbury, 11 Wheat. 78; Bump, Fraud. Conv. (4th Ed.) §§ 308-337. swer. Error is also assigned upon the failure of the court to find upon the issue of the statute of limitations tendered in the amended anIt appears that the complaint was amended before trial, over two years after the action was commenced, by interlineation, so as to refer to a copy of the deed of assignment annexed to the complaint, instead of to the original. By the amendment no new cause of action or additional parties were added; therefore the running of the statute of limitations was arrested at the date of filing the original complaint, and the amendment related back to the time of the filing of the complaint. 1 Enc. Pl. & Prac. p. 621. "Even on material issues, a failure to find further facts is not reversible error, if, when found, they must necessarily have been adverse to the appellant, and when those al ready found are sufficient to support the judgment." Haarstick v. Fox, 9 Utah, 110, 33 Pac. 251; Fox v. Haarstick, 156 U. S. 674, 15 Sup. Ct. 457; Groome v. City Corporation, 10 Utah, 59, 37 Pac. 90; Maynard v. Association, 51 Pac. 259, 16 Utah, 145. Upon a motion being made before the court to correct the date of filing the findings of fact and conclusions of law, the court, after hearing the testimoný presented, directed the clerk to strike out the filing erroneously marked thereon as of March 9, 1897, and to file the same as of January 2, 1897, that being the date the paper was actually left for file. Error is assigned upon the making of this order. In this case the sufficiency of the evidence to justify the findings and order made is not before this court by the appeal. The making and filing of the findings and conclusions was a part of, and should precede the entry of, the judgment. The fee for filing should be included in the trial fee. The findings were left with the clerk to be filed on January 2, 1897. They were not filed until March 9th following. When the court left the papers with the clerk for file on January 2d, they were just as effectually filed as though the clerk had actually placed his filing mark upon them as of that date. The order made was correct, and within the rule laid down by this court in Fisher v. Emerson, 15 Utah, 517, 50 Pac. 619; Maynard v. Association, 16 Utah, 145, 51 Pac. 259. There are other questions discussed in the briefs of counsel, but we do not consider them of sufficient importance for further comment. Upon the whole record we find no reversible error. The judgment of the court below is affirmed. ZANE, C. J., and BARTCH, J., concur. (17 Utah, 370) STATE v. McKEE. (Supreme Court of Utah. June 10, 1898.) LARCENY INFORMATION-COMMITMENT-VARIANCE -AMENDMENT-EVIDENCE-INTENT. 1. Defendant was convicted by the magistrate for stealing sheep owned, as alleged, by 10 individuals, while the information filed in the district court alleged a several ownership in 6 of the same 10 men. Variance held not fatal, because it appeared from the statements in the commitment and those in the information that both were intended to describe the same offense, the same transaction. 2. An information will not be set aside because of inaccuracies and mistakes of the magistrate in describing the offense, or even in characterizing it, when it appears with sufficient certainty that the real transaction-the conduct, the acts and motives described in the information as the offense-was investigated by the magistrate, and a commitment made there on. 3. It is not error to allow an amendment to an information before trial by the insertion of certain words, when the amendment was immaterial, and the legal meaning and effect were the same without as with the amendment. 4. When circumstances which succeed and depend upon each other as a chain alone are relied on for conviction, each link must be proven beyond a reasonable doubt; but when they form two or more chains, or if one or more of the circumstances directly connect the defendant with the commission of the crime, and do not depend upon the others, it is not necessary to prove each beyond a reasonable doubt, when all considered together establish guilt beyond a reasonable doubt. 5. It was not necessary to prove that the defendant and others with him actually intended to convert the sheep to their own use. It was sufficient to prove beyond a reasonable doubt that they took the sheep away against the will of their owners, with the intention of permanently depriving them of their property; and the fact that they killed a large per cent. of the sheep, wounded others, and never returned the rest, was sufficient proof of such intention. (Syllabus by the Court.) Appeal from district court; W. N. Dusenberry, Judge. James McKee was convicted of larceny, and appeals. Affirmed. Rhodes & Williams, for appellant. A. C. Bishop, Atty. Gen., and W. A. Lee, Asst. Atty. Gen., for the State. ZANE, J. This is an appeal from a judg ment of the district court, rendered on August 26, 1897, sentencing defendant to the state prison for the term of five years, upon a verdict finding him guilty of the crime of grand larceny. Before entering his plea of not guilty, the defendant, submitted a motion to set aside the information, upon the ground that he had not been committed for the crime described in it, after an examination by a magistrate. Stated more definitely, the ground was that his examination and commitment was upon the charge of having stolen 700 buck sheep, the property of John H. Reader, and 9 others, naming them, when the information filed in the district court charged him with stealing 91 buck sheep, the property of John H. Reader, and a lesser number, the property of each of 5 other of the men named in the commitment. The commitment stated, in effect, the sheep were the common property of 10 individuals, when the information charged they were owned individually by 6 of the same 10. One ownership was alleged to be joint; the other, several. The name of the owner of stolen property is no part of the crime. It is stated in indictments and informations as a matter of description, as the particular species or stock of the animal stolen, or as the kind, quality, or peculiarity of other personal property taken may be mentioned. The statute defines larceny to be "the felonious stealing, taking, carrying, leading, or driving away the personal property of another." The name of the owner is mentioned for the purpose of identification, -for greater certainty, so that it may be ascertained that the defendant was convicted or acquitted, as the case may have been, of a certain offense; that the defendant may not be again prosecuted for the same offense; or, if prosecuted for another offense, that it may not be mistaken for the one of which he was convicted or acquitted. The question presented for decision is, did it sufficiently appear upon the motion that the defendant had been examined and committed for the offense charged in the information? The information alleges that defendant, on the 19th day of July, at the county of Uinta and state of Utah, had been duly bound over by Leon R. Pack, a committing magistrate of that county, for the commission of the crime described in the information. The defendant, on the hearing of the motion, introduced in evidence a commitment, and a complaint made part of it by reference, which showed a commitment by the same magistrate mentioned in the information, and on the same day, and at the same county, for the larceny of the same kind of sheep owned by 6 of the 10 men named in the commitment, the variance relied upon being that the ownership in the commitment was alleged to be joint, while that in the information was alleged to be several. We are of the opinion that the presumption arising from the allegation of the prosecuting attorney in the information that the defendant had been duly committed for the offense charged, and from a comparison of the facts stated in the complaint to the committing magistrate, and in the commitment by him, in evidence on the motion, with those stated in the information, was not overcome by the variance relied upon by the defendant. The ownership of the sheep was not the only fact by which to identify the particular conduct of the defendant,-the transaction investigated by the magistrate. The particular time, place, description of the property, and other attending and surrounding circumstances of the act or occurrences,-the transaction,-may all be resorted to for the identification of the crime. Section 4935. Comp. Laws Utah 1888, provides that "when an offence involves the commission of, or an attempt to commit, a private injury and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured, or intended to be injured, is not material." The information will not be set aside because of slight inaccuracies and mistakes of the magistrate in describing the offense, or even in characterizing it, when it appears with sufficient certainty that the real transaction, the conduct, the acts and motives described in the information as the offense, were investigated by the magistrate, and a commitment made thereon. Such an examination and commitment the accused is entitled to, (unless he waives, it) before an information is filed against him, and no more. We are of the opinion that it sufficiently ap pears from the information, and the commitment and complaint made a part of it, that there had been an examination and commitment by a magistrate, as required by the constitution and statute, before the complaint was filed. While we have not been referred to any case, nor have we found one directly in point, the following to some extent support the view we have taken: People v. Smith, 112 Cal. 333, 44 Pac. 663; People v. Parker, 91 Cal. 91, 27 Pac. 537; Ex parte Nicholas, 91 Cal. 640, 28 Pac. 47; People v. Leong Quong, 60 Cal. 107. The information, among other things, alleged that the defendant, on the day and at the county and state named, a certain number of buck sheep mentioned, the property of six persons named, feloniously did steal, take, and carry away; and, before the trial commenced, the prosecuting attorney, by leave of the court, amended the information, by inserting, between the name of the owner last mentioned and the word "feloniously," the following: "then and there all at the same time and place." To the order of the court allowing the amendment the defendant excepted, and now assigns it as error. The information, without the amendment, charged that the defendant, on the day and at the county and state mentioned, "committed the crime of grand larceny, by then and there feloniously taking, stealing, and driving away the personal property of another." This language was followed by the names of the owners of the property. Without the amendment, the information stated but one taking and carrying away, but one stealing and larceny. The legal meaning and effect of the information was exactly the same without the amendment as with it. But one transaction could be proven under it. The legal effect and signification with or without the amendment was the same. Therefore the amendment was perfectly immaterial, and could not prejudice either party, and could not be urged as a ground of demurrer or otherwise. The defendant requested the court to charge the jury that, "when circumstantial evidence is relied on for conviction, the various circumstances relied on must make a complete chain, all together harmonizing, and must establish beyond a reasonable doubt the guilt of the defendant. And each link in the chain of circumstances must be proven and established beyond a reasonable doubt in order that a conviction may be had upon this class of evidence." This request was refused, and the defendant excepted, and assigns the refusal as error. Counsel, in his request, likens circumstantial evidence to a mechanical invention,-a chain; and each circumstance to a material contrivance,-a link. And he asserts that the existence of each link must be established beyond a reasonable doubt; that, by such a chain, crime may be fastened on the accused; and that it cannot be done in any other way by circumstances. Whether the circumstances must succeed each other, each connecting with and depending on the other, or that some or all might be directly connected with the accused and the crime, is not clear from the request. In the first arrangement the chain of circumstances could be no stronger than its weakest link. But if the facts are not so dependent on each other, but are connected directly with the accused, and with the act or motive constituting the crime, they should be so considered; and in that case some may be proven beyond a reasonable doubt, and others by a preponderance of the evidence, and the jury should consider them all together, and give to each circumstance such weight, when considered with all, as it deserves. Circumstances should be considered with respect to each other, directly or indirectly, as the evidence shows them to be related. If the inferences from the facts connect the circumstances relied upon with both the accused and the crime, without any intervening fact, and the circumstances in that way are all linked together, it follows, as before stated, that, some of them being proven beyond a reasonable doubt, others may be established by a preponderance of the evidence. And, if the inferences from the facts proven beyond a reasonable doubt establish the guilt of the defendant beyond a reasonable doubt, the proof of others by a preponderance of the evidence simply cannot lessen the weight of the proof of guilt, but must add to it. In the absence of direct or positive testimony, the connections between facts are matters of inference; but jurors are permitted to infer the existence of a fact in dispute from others proven. In doing so, they may consider the habits and usages of mankind, and the uniformity of the manifestations of nature under given conditions; and, in so doing, they should draw their inferences in the light of observation and experience. Jurors should be permitted by the instructions to draw any reasonable inference from any competent, relevant, and material fact before them as to the existence of any other such fact. There was direct testimony before the jury, however, of the crime charged and the guilt of the defendant; and it was the duty of the jury to consider the circumstantial evidence with the direct testimony, and though one class of testimony may not have been sufficient to convict, if, when both were considered together, the whole was sufficient, it was their duty to do so. Bressler v. People, 117 Ill. 422, 8 N. E. 62. We find no error in the refusal of the request; nor do we find error of which the defendant can complain in giving a similar request to the one quoted with the word "only" added. Defendant insists, further, that there was no proof that the defendant drove the sheep away from the place where they were kept by their owners, and that they were converted to the use of the defendant; that there was no evidence of asportation and conversion. There was evidence that the sheep were in the possession of the employés of their owners, and that the employés were blindfolded by the defendant and three other men, and tied to trees; and that the four men took and drove the sheep away, and killed a large number of them, and wounded many more, and never returned any of them. It was not necessary to prove that the defendant and the others with him actually intended to convert the sheep to their own use. It was WHITTAKER v. GREENWOOD et al. (Supreme Court of Utah. June 17, 1898.) FILING OF NOTICE OF LIS PENDENS-WHEN NECESSARY-APPEAL-REVIEW. 1. Section 3206, Comp. Laws, providing that notice of lis pendens may be filed with county recorders, does not in any way change the rule of law relating to actual notice of the pendency of the action, nor the effect of such actual notice upon parties dealing with or obtaining possession or title to land in litigation. 2. Where there are no findings upon the question of the statute of limitations, and the facts agreed upon are silent upon the subject, the question cannot be considered upon appeal. (Syllabus by the Court.) Appeal from district court, Fifth district; E. V. Higgins, Judge. Suit by James Whittaker against Joshua Greenwood, Caroline Black, and Burnham, Hanna, Munger & Co., a corporation, to quiet title. There was a decree for defendants, and plaintiff appeals. Affirmed. Geo. Westervelt, for appellant. Warner & Houtz, for respondents. MINER, J. This action was brought to quiet title to a certain piece of land referred to in the complaint. Upon an agreed statement of facts the court found: That on the 28th day of January, 1897, plaintiff recovered judgment against the Salt Lake Equitable Co-operative Institution for the sum of $5,074. An execution was issued thereon, and levied upon all the interest of the defendant, the Salt Lake Equitable Co-operative Institution, in a certain piece of land in question in this suit, by virtue of which defendant's interest was sold to plaintiff on March 16, 1897, and a certificate or sale thereof delivered by the sheriff. That on April 5, 1897, the said Salt Lake Equitable Co-operative Institution conveyed to plaintiff, for a valuable consideration, all its interest in said premises. That on November 17, 1891, the defendant Caroline Black was owner in fee and in possession of said land and premises claimed by appellant. That on that day, to secure the payment of $314 she was owing to said Salt Lake Equitable Co-operative Institution, she executed to it a deed absolute in form, but understood and agreed to be, and was in fact, a mortgage upon said land. Thereafter, in the year 1892, said Caroline Black paid to said Salt Lake Equitable Co-operative Institution all said indebtedness arising under said deed, and demanded a reconveyance to her of said property, but said co-operative institution at all times since said demand and payment refused so to do. That on November 9, 1896, Caroline Black commenced a suit against said Salt Lake Co-operative Institution to obtain a decree to declare said deed a mortgage, and that the debt which the deed of said property was given to secure had been fully paid, and to cancel said mortgage. That no lis pendens was at any time filed in said cause with the county recorder. Said case was tried on March 5, 1897, and said court decreed the said deed a mortgage to secure said sum of $314, and that said defendant had been fully paid in the year 1892, and made its decree canceling said deed, and decreeing that said Salt Lake Equitable Co-operative Institution had no legal interest in said property, except as trustee for the use and benefit of said Caroline Black, the legal owner. Said decree was made prior to the sale upon plaintiff's execution, and remains valid, and was not appealed from. That at the time the plaintiff purchased the interest of said Salt Lake Equitable Co-operative Institution in said land at said sale under his execution, he had actual notice of the defendants' claim and interest in said premises. A decree was granted in favor of the defendants, from which the plaintiff appeals to this court. The appellant contends that, because no notice of lis pendens was filed with the coun ty recorder in said action of Black against Salt Lake Equitable Co-operative Institu tion, the appellant having acquired his in terest in the property during the pendency of the suit to set aside the deed, he stands wholly unaffected by the decree of the court in said cause, notwithstanding he had actual notice of said suit, and the interest of said Caroline Black in said land, at the time he purchased under his execution sale, and ob tained said conveyance. We do not concur in this. Under section 3206, Comp. Laws Utah 1888 (Rev. St. § 2953), notice of lis pendens may be filed with the county recorder. The object of this statute was to provide a mode for giving constructive notice which was formerly given by the commencement of the action itself. It does not in any way change the rule of law relating to actual notice of the pendency of the action. nor the effect of such actual notice upon parties dealing with or obtaining possession or title to the land in litigation. In this case it appears that at the time plaintiff purchased under his execution sale and ob tained a conveyance of the interest of the Salt Lake Equitable Co-operative Institution in said land he had actual notice, and was not in a position to object if the statutory notice had not been filed, the filing of which was intended only to give him the notice which he had already or afterwards acquired before purchase. Sharp v. Lumley, 34 Cal. 611; Sampson v. Ohleyer, 22 Cal. 200; 2 Devl. Deeds, § 805; Baker v. Pierson, 5 Mich. 456; Halley v. Oldhan, 41 Am. Dec. 262. It is also claimed by the appellant that the cause of action on the part of the defendant Caroline Black against the Salt Lake Equitable Co-operative Institution was barred by the statute of limitations, and that appellant has the right to interpose such statutory bar in this action. It does not appear from the complaint or findings in this case that this claim was made by the appellant in the court below, nor does the record disclose that such a defense was interposed anywhere. If the statute of limitations was interposed, the findings are silent upon that subject, and no objections or exceptions are raised to the findings. The findings were based upon the agreed state of facts, which were also silent upon that subject. If the appellant desired to interpose the statutory bar provided in section 3143, Comp. Laws Utah 1888, it was his duty to plead the statute creating the bar. This he did not do. Comp. Laws Utah 1888, § 3244; Spanish Fork City v. Hopper, 7 Utah, 235, 26 Pac. 293; Thomas v. Glendinning, 13 Utah, 47, 14 Pac. 652; Fullerton v. Bailey, 53 Pac. 1020, 16 Utah, -; Howell v. Rogers, 47 Cal. 291. If errors were committed by the trial court in its proceedings, findings, and judgment, they should have been presented and pointed out by proper assignments and exceptions. The appeal seems to have been taken from the judgment, but no errors are assigned upon the record as shown by the abstract. Under the circumstances we do not deem it necessary for further discussion of the questions presented in the case. The judgment of the district court is affirmed, with costs. ZANE, C. J., and BARTCH, J., concur. (17 Utah, 300) HARRINGTON v. EUREKA HILL MIN. CO. (Supreme Court of Utah. June 13, 1898.) INJURY TO EMPLOYE-CONTRIBUTORY NEGLIGENCE -BURDEN OF PROOF-DAMAGES. 1. The burden is upon the defendant to allege and prove contributory negligence; but, if the plaintiff proves it, the defendant is not required to. The jury must decide the issue upon all the evidence. 2. It is not error to charge the jury, if they find for the plaintiff, they will assess such amount as will fully compensate him for his injury. While the use of the term "fully" is unnecessary, it is not error. 3. The amount of damages in cases like this is a question of fact, to be determined by the jury from the evidence; and under the constitution of this state the supreme court is not at liberty to say the amount is excessive, when there is any evidence to support the finding. (Syllabus by the Court) 53 P.-47 Appeal from district court, Fifth district; E. V. Higgins, Judge. Action by Michael W. Harrington against the Eureka Hill Mining Company. Plaintiff had judgment, and defendant appeals. Affirmed. Booth, Lee & Gray and Bennett, Harkness, Howat, Bradley & Richards, for appellant. Powers, Straup & Lippman, for respondent. ZANE, C. J. This action was brought to recover damages to plaintiff in consequence of personal injuries, caused, as alleged, by the negligence of the defendant, in putting plaintiff to work, in a drift of its mine that reasonable prudence and care required to be first timbered, without warning him of danger. This is an appeal by the defendant from a judgment of the district court upon the verdict of the jury awarding the plaintiff $10,000 damages. In deciding this ap peal, we are not at liberty to consider the evidence further than it may be necessary in deciding upon the correctness of the rulings of the court assigned as error, in apply. ing to the evidence principles of law, and so far as necessary to determine whether any essential fact is entirely unsupported by the evidence. The defendant assigned as error the following statement in the charge of the court: "The burden is upon the defendant to establish contributory negligence on the part of the plaintiff in this case." The rule of evidence undoubtedly is that the burden of proof lies on the party who substantially asserts the affirmative of the issue, and the rule, as applied to proof of contributory negligence in this state, is that the defendant is required to allege contributory negligence on the part of the plaintiff, and to prove it by a preponderance of the evidence, and the burden was not upon the plaintiff in the first instance to disprove it. That is undoubtedly the rule in this state, and the court did not err in so charging. The statement complained of, standing alone, might have misled the jury; but, when considered with other parts of the charge, it is not probable they were. If the evidence introduced by the plaintiff furnished sufficient proof of contributory negligence on his part, of course, it was not necessary for the defendant to prove it also. In determining the question of contributory negligence on the part of the plaintiff, it was the duty of the jurors to consider the whole evidence bearing on the issue. If the plaintiff offered any evidence tending to prove or disprove negligence on his part, the jurors should have considered that, with the evidence offered by the defendant, if any, tending to prove or disprove it, and it was the duty of the court to so inform the jury. In deciding the issue as to the negligence of the defendant, and the issue as to the contributory negligence of the plaintiff, it was the duty of the jurors to consider all the evidence before them |